Across the nation, the so-called “judicial resistance” is very, very real. And, contra Teri Hatcher opining in an infamous Seinfeld scene on a certain bodily asset, it is not at all spectacular.
In the age of Trump, it is legitimately imposssible to keep up with the never-ending deluge of black-robed malfeasance. From finding an affirmative right to immigrate in contravention of the political branches’ plenary power doctrine, to mandating the continuance of President Obama’s lawless DACA amnesty edict, to commencing full-frontal assault on legislative prayer, to inducing abortion chain migration for illegal aliens, to countermanding the Commander-in-Chief’s unambiguous military preparedness prerogative vis-à-vis precluding actively serving transgenders, the lower federal courts in the Trump era have more often than not been engaged in systemic, politically motivated defiance of the president’s sundry priorities. What Alexander Hamilton assured his compatriots in Federalist No. 78 would be the “least dangerous” branch has instead transmogrified into something much, much more insidious.
In November, U.S. Supreme Court Chief Justice John Roberts took the rare step of publicly rebuking President Trump. Trump had belittled a federal district court judge who ruled against him on his revised aslyum policy as an “Obama judge.” Roberts shot back: “We do not have Obama judges or Trump judges. … What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Roberts was wrong. And Trump was right.
We have long, long since crossed the proverbial Rubicon when it comes to the purportedly apolitical nature of our federal judiciary. The legal realism movement of the late 19th and early 20th centuries, best embodied by the transformative Supreme Court Justice Oliver Wendell Holmes, was perhaps the first sustained intellectual blow against our republic’s natural law-centric Founding. Legal realists rejected any useful role for a transcendental moral order in adjudication, and they also stood manifestly athwart the strict adherence to constitutional and statutory text that dominated the hitherto dominant legal formalism school of thought. By the end of the FDR administration — and, especially following the infamous “switch in time that saved nine” — legal realism was on its way to being replaced by what we would today recognize as the Left’s preferred jurisprudential methodology, non-sensical and anti-republican “living constitutionalism.”
The story does not end there. In 1958, in a little-known opinion known as Cooper v. Aaron, the Supreme Court quietly effected its most nakedly self-aggrandizing power grab ever. In Cooper, for the very first time, the Supreme Court pronounced itself to be the sole and final binding arbiter of constitutional disputes. The Cooper Court said:
In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison … that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.
Marbury, of course, stands for nothing even remotely resembling the judicial supremacist sentiment the Cooper Court affixed to it. As Michael Stokes Paulsen has persuasively argued, Marbury instead stands not for judicial supremacy but for constitutional supremacy: That is, each of the three branches has an independent and binding fealty to interpret and abide by the Constitution, as it sees fit, in line with its own carefully delineated constitutional duties and powers. As Josh Blackman noted last year, the Cooper Court’s radical claims amounted to “unprecedented assertions of judicial power.”
Contrast Cooper with Abraham Lincoln’s magisterial First Inaugural Address, in which the Great Emancipator treated the legal and moral abomination of Dred Scott v. Sandford with little more respect than Bill Clinton might treat a Little Rock call girl:
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
The legal Left, armed with the uniquely dastardly combination of unhinged “living constitutionalism” and grotesque judicial supremacism, has wreaked nonstop havoc on our republic for over half a century. The Lincolnian notion of a president refusing to kowtow and thereby stand athwart judges definitively settling broader legal disputes for the whole citizenry, as opposed to its actual constitutional role of merely adjudicating discrete legal disputes, now strikes us as quite faint.
Donald Trump is perfectly suited to be the man to help make Lincolnian defiance of the judiciary great again. It is long past time for Trump to defy a federal court.
It takes a certain amount of chutzpah, a certain amount of bravado, and a large helping of a devil-may-care attitude to try to pull this off. That pretty much perfectly describes President Trump. And ever since Inauguration Day, Trump has been routinely thwarted by the “judicial resistance.” Indeed, President Trump’s tweets and rhetoric have almost perfectly foreordained this very moment. Recall his infamous “so-called judge” tweet from barely two weeks into his presidency.
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!
— Donald J. Trump (@realDonaldTrump) February 4, 2017
Trump should start with defying a district court judge. Notwithstanding Cooper’s erroneousness and the fact that not even the Supreme Court can bind a president as to its own constitutional interpretations, there is no serious argument that a single district court judge can actually bring the entirety of the political branches of the federal government to a complete halt. The next time an Obama-nominated resistance-type district court judge reaches an absurd legal conclusion and attempts to issue a (completely lawless) nationwide injunction against a prized Trump administration priority, the president should effectively tell that judge to go take a hike. Trump can make like Lincoln and enforce the judge’s order as it pertains to the named litigant(s) to the actual underlying lawsuit, but he should go no further. He should resolutely refuse to treat the diktat as a broader and binding legal ruling. And he should have his Department of Justice’s Office of Legal Counsel write a formal memorandum explaining exactly why nationwide injunctions are lawless, why Cooper and judicial supremacism are wildly at odds with a rudimentary understanding of constitutional structure, and why Lincoln was correct to treat Dred Scott as non-binding for everyone except Mr. Scott himself.
Trump’s detractors would assuredly flip out. Perhaps they would take to the streets, don their “pussy hats,” and cry out “tyranny!” en masse. Let them do it. Let MSNBC have a field day covering it. These are the same people who think that every bowel movement of Trump’s ought to be monitored for possible signs of fascism.
Trump is uniquely positioned to defy a federal court. The courts are rabidly attempting to thwart his agenda, and his iconoclastic nature and built-in anti-judicial sympathies are perfectly suited for beginning to tilt the tide back away from Cooper and its hellacious subsequent decades of judicial supremacism gone wild.
And perhaps most importantly, Trump should be able to take solace in knowing that, in so doing, he will be standing with Abraham Lincoln himself.